District 5 Diary

Rob Anderson's commentary on San Francisco politics from District 5

Sunday, May 15, 2005

Judge Warren's court: The MLK endgame

Last Friday lawyers for the Music Concourse Community Partnership (MCCP) and the Concourse Authority---the City Attorney represents the Authority---were in Judge Warren's court to make the case for the MLK "widening" plan. Trees Not Cars was represented by Thomas Lippe, and Pinky Kushner and Howard Strassner were allowed to make statements on behalf of the Concourse Authority's opponents. In the beginning of the hearing, Judge Warren announced that Save Golden Gate Park---Chris Duderstadt's group---has settled with the city and is no longer part of the litigation opposing the MLK plan.

John Keker and Susan Harriman from Keker and Van Nest spoke on behalf of MCCP. Keker argued that the present plan for MLK is in accord with both Proposition J passed by the city's voters and Judge Warren's order of last summer. He pointed out that the Golden Gate Park Master Plan doesn't allow any new roads to be built in the park, and therefore removing the parking from both sides of MLK and restriping it to create lanes to and from the new underground garage does not conflict with the Master Plan. He also argued that, unless special definitions are attached to "dedicated" and "exclusively"---the terminology used in Proposition J---the Authority's MLK plan is in accord with Proposition J. Keker told the judge that, according to CEQA, "strong deference" must be accorded to the city on the plan, unless there is "substantial evidence" produced indicating otherwise. He argued that the roadway to the garage entrance had to be a surface road, since the tunnel option was already thoroughly considered and rejected for the southern entrance.

Susan Harriman argued that the alleged Brown Act and Sunshine Ordinance violations by the Concourse Authority before the Nov. 16, 2004 meeting were without merit, that the law only required that 24-hour notice be provided, along with an accurate description of the business to be transacted at the meeting. Both of these requirements were met by the Concourse Authority. It's not clear that the judge is even going to rule on this issue, but if he does it's unlikely he'll see any merit in the claim that there was an inadequate notice and/or the agenda description was inadequate. My email archives contain a copy of the Nov. 16, 2004 agenda, which has a lengthy description of exactly what the Concourse Authority was planning to do that day. This was posted on PROSF's bulletin board on November 11, 2004, five days before the meeting:4. GOLDEN GATE PARK MUSIC CONCOURSE UNDERGROUND PARKING FACILITY. Discussion and possible action to approve a dedicated access route to the Music Concourse Underground Parking Facility from options including, but not limited to, those identified as Options #1 (inbound and outbound from 9th & Lincoln), #4 (inbound from MLK & Crossover, outbound to 9th & Lincoln) and #10 (all traffic enters at 10th & Fulton, no second entrance/exit); to make various findings related to the selection of an option; and to authorize the executive director to amend any Parking Facility documents and approve any changes to the Parking Facility construction documents as necessary to reflect the actions contemplated herein. (DISCUSSION & POSSIBLE ACTION ITEM)

Lippe argued that the city has no discretion about Prop. J's "dedicated" and "exclusively" terminology, which means that the roadway to the entrance can't be shared in any way with bicycles, buses, and other cars. In short, he argued that the southern entrance had to be a tunnel to be in accord with Proposition J. In any event, Lippe thinks the northern entrance---which no one is challenging---at Fulton and Tenth Avenue is good enough to handle all the garage traffic.

Lippe must know, however, that, in his Statement of Decision last year, Judge Warren said that the Concourse Authority's rejection of the idea of a tunnel under the park to the southern garage entrance was well-founded, that such a project would do too much damage to the park and the contiguous neighborhood. Warren also accepted the necessity of two entrances to the garage in his decision. Hence, Warren, while polite and accommodating last Friday, heard nothing that seriously challenged the rational arguments he has already endorsed in his earlier decision.

Kushner argued unconvincingly that people in cars should be directed to the northern entrance to the garage before they get to the park, thus avoiding the problem for those who have already driven into the park to get into the garage. With only the one entrance to the garage, all those who, for whatever reason, find themselves inside the park and want to enter the garage will have to leave the park and drive through the surrounding neighborhoods to get to the single, northern entrance at Tenth and Fulton, not a plan the judge is likely to endorse. Kushner argued too that "widening" MLK will actually encourage people to drive into the park, though she didn't present any evidence to document the assertion. She also claimed that redesigning MLK would have "severe and significant" impacts on the neighborhood on the southern side of the park, but, again, she didn't present evidence for the assertion.

Strassner argued that altering MLK would have serious visual and auditory impacts that hadn't been considered, and that the MLK plan should have its own EIR. He too argued that the single northern entrance would be adequate and that there was no need for two entrances to the garage.

But an important part of Proposition J, which garage/MLK opponents never mention, is that the public must have reasonable access to the Concourse area and the new garage. Creating traffic jams at the northern entrance or on an unaltered MLK could reasonably be interpreted as being in conflict with that important mandate in Prop. J.

Opponents of a re-designed MLK Boulevard have been able to create the illusion of a public outcry by stampeding a bunch of organizations and neighborhood groups, but the widening MLK issue has always been up to Judge Warren. The Board of Supervisors seems to understand this better than those involved in the "movement" to overturn the Concourse Authority's plan to make MLK into a "dedicated" roadway to the southern entrance to the garage. In fact, the Authority's MLK plan was formulated only in response to Judge Warren's order in his decision last year. The Authority was not playing Lone Ranger on the issue. Judge Warren wrote in that decision that the Authority hadn't properly considered the approach-to-the-southern-entrance issue, that they needed to do so and bring back a plan for his consideration that included a roadway to the southern entrance that begins outside the park.

In summing up, Judge Warren said that he was "very familiar" with everything in the public record, which is bad news for the garage/MLK/southern entrance opponents. His thoughtful decision last August showed that he had a thorough grasp of all the issues involved. His order to the Concourse Authority to take another look at the "dedicated" roadway issue, as per Prop. J, amounted to nothing more than a quibble with the Authority's plan as a whole. In his decision last year, he implicitly endorsed two entrances to the garage and rejected the idea of a tunnel to the southern entrance.

He asked the attorneys for the two sides to submit their versions of what they would like his final order to say on May 25. The endgame to the whole garage-in-the-park issue is in its final phase.